Editorial: The Adult Industry And Max: Time To Walk The Walk

"Never send to know for whom the bell tolls / It tolls for thee"

PORN VALLEY - Did you ever read James Joyce's Ulysses? I bought a copy the other day at the local Borders books, trying to catch up on the classics I was supposed to read in high school, and found it incredibly boring ... but that's the point: I bought it the other day at the local Borders books! Eighty years ago, you couldn't do that, even if Borders had existed then; it was found to be obscene at a trial instigated by the New York Society for the Suppression of Vice, which objected to a section about the novel's main character, Leo Bloom, masturbating.

In 1999, the Modern Library, a classics publisher, ranked Ulysses first on its list of the 100 best English-language novels of the 20th century.

Now before anybody gets crazy, I'm not about to suggest that any of the five movies for which Paul Little, better known by his nom du porn Max Hardcore, was recently prosecuted in Tampa are likely to wind up on anybody's "100 Best Porn Movies of the 20th Century" list ... but that's not the point. The point is that Little's conviction took away just a bit more of your constitutional rights - and I'm not the only person to have noticed that.

"These porn prosecutions," wrote attorney, author and Salon.com columnist Glenn Greenwald, "are the by-product of the demands from Senate Republicans such as Orrin Hatch, who simultaneously argue that (a) the Threat of Muslim Terrorism is so grave and 'transcendent' that we must dismantle our entire Constitutional system and turn ourselves into a lawless surveillance state in order to combat it, and (b) the FBI and DOJ should use their resources to prosecute American citizens who produce consensual adult pornography. The same Alberto Gonzales who decreed the Geneva Convention to be a quaint relic in order to legalize torture announced in 2005 that adult pornography prosecutions would be his 'top priority' as Attorney General (at his confirmation hearing, Michael Mukasey assured Hatch he shares the same concerns about 'mainstream, adult pornography' as Gonzales did)." [Emphasis in original here and below]

Greenwald notes a courtroom colloquy between Little's attorney Jamie Benjamin and Judge Susan C. Bucklew about whether urine and vomit in a XXX movie were either "sadistic or masochistic," or whether the actresses were in pain while making the movies - one frequent Max actress testified under oath that she wasn't - but Judge Bucklew concluded anyway that the material portrayed "sadistic conduct ... This is clearly degrading, clearly humiliating and intended to be so."

"There was no suggestion that any serious violence was ever inflicted or that the adult actors in the film were anything other than completely consensual," Greenwald summarized. "But the court found that the depiction of severe pain was not required for conviction; instead, mere humiliation and degrading treatment was sufficient to render the films criminal and to warrant a long prison sentence."

His point? Dozens, perhaps hundreds of soldiers, officers and CIA interrogators did much worse to their kidnap victims at Abu Ghraib prison and Guantanamo Bay, committing actual torture upon their prisoners - but nobody seems ready to throw them in the slammer for nearly five years!

"So, to recap," Greenwald concluded, "in the Land of the Free: if you're an adult who produces a film using other consenting adults, for the entertainment of still other consenting adults, which merely depicts fictional acts of humiliation and degradation, the DOJ will prosecute you and send you to prison for years. The claim that no real pain was inflicted will be rejected; mere humiliation is enough to make you a criminal. But if government officials actually subject helpless detainees in their custody to extreme mental abuse, degradation, humiliation and even mock executions long considered 'torture' in the entire civilized world, the DOJ will argue that they have acted with perfect legality and, just to be sure, Congress will hand them retroactive immunity for their conduct. That's how we prioritize criminality and arrange our value system."

Perhaps that juxtapositioning of performers and torturers is a concept to which some of the Leading Lights of Porn Valley might give a little thought, because the impending imprisonment of Paul Little and the immunization of the military/industrial complex torturers leads down the same rathole: The deep-sixing of everybody's constitutional rights.

Jus to remind everyone, let's consider what Little was convicted of: Five counts of interstate transportation of obscene material, and five counts of posting obscene material to a website. (His company, Max World Entertainment, was convicted of identical "crimes.") As AVN readers know, I attended the full two weeks of that trial and can state categorically that nine of the 12 jurors (not to mention at least one of the alternates) were ready to convict Little from the moment they walked into that jury room to "deliberate" - if not from the moment the government played the first movie in the courtroom.

So the fact that the evidence clearly showed that Little had absolutely nothing to do with the mailing of his movies to Tampa - those actions were performed by distributor Jaded Video, and its owner testified unequivocally and without contradiction to that in open court - meant nothing to the nine jurors; they were going to find him guilty anyway - and even planned, apparently during deliberations, to write a book about it, since that's what they told a Tampa Tribune reporter immediately after the trial ended. (Jaded's owner, James Komurek, was granted immunity from prosecution for his testimony.)

The government, of course, also knew that Little had nothing to do with the mailing - other than producing the movies that were eventually sent, that is - so there's every reason to believe that its attorneys committed malpractice by trying Little simultaneously for both the mailing and the posting of trailers of those same movies on the MaxHardcore.com website. See, the five trailers upon which Little was convicted ran a total of eight-and-a-half minutes, full of rapid edits, with no image on-screen for more than a few seconds; it's doubtful that the jurors, absent their predisposition to find Little guilty, could have found that those few seconds of hardcore material had sufficiently violated the community standards of the Middle District of Florida to send him to prison for nearly five years - unless they conflated the material in the trailers with the material they saw in the full movies that, absent the government's bogus mailing charge, would never have been shown to them!

(All this, by the way, is without even considering the excellent points the defense brought up in pretrial motions, that the "community standard" for the World Wide Web should be the entire world, and that the "work, taken as a whole" when applied to trailers on a website should be, if not the entire Internet, then at least the entire website. No appellate court has yet ruled on these vitally important issues - but one could in this case.)

So, as The Bard said, to recap: Little was in fact not guilty of mailing the videos to Tampa and, forgetting about whether obscenity is even a valid concept under the U.S. Constitution, arguably not guilty of posting obscene trailers of the movies on his website because the jury was likely tainted by having to sit through the full movies - about eight hours of viewing pleasure - from which the trailers were taken, and was therefore unable to judge the obscenity (or lack thereof) of the trailers themselves.

In other words, if there is any justice in the Eleventh Circuit, Little's conviction on the mailing will be reversed, and he will at least be granted a new trial on the trailers, during which there is every possibility that he would be acquitted of that "crime" as well.

In obscenity jurisprudence, the adult industry would call that a "win" - and winning is something the adult industry likes ... even if it doesn't particularly like the winner.

And that's the point of this piece: Winning takes money, and Little's fast running out of it.

See, funny thing about obscenity prosecutions: When the government claims your stuff is illegal, retailers tend to buy less of it - even stuff that the feds didn't charge. It's called the "chilling effect" - and ain't nobody better at chilling (and not in a good way) than the federal government! It wouldn't surprise me if Evil Angel, the most recent indictee, has suffered a slight drop in sales, at least of the titles that were charged.

And if enough people get scared enough and start refusing to buy an indicted company's product, as saleable as it might have been the day before, then that company's revenues dry up and it can't defend itself against the shitstorm the government has the power to lay on any adult production company in the U.S..

And if you think that fact hasn't occurred to the feds already, ask Phil Harvey; he wrote a book about it: The Government Vs. Erotica.

Remember, it's not as if the porn-buying public has been breaking down the door to contribute to Little's defense - much like the industry itself and Free Speech Coalition haven't been.

So it's not surprising that Little's attorney, the veteran First Amendment defender H. Louis Sirkin, has been getting a little pissed.

When we spoke before Little's sentencing, Sirkin started by explaining some of the ins and outs of sentencing guidelines, particularly the financial end of it. See, if someone makes money from their "crime," that can add years to a sentence - and much as Little's product gets disparaged around this town, it apparently sells (or used to) pretty well out in the 'burbs and over in Europe, where as everyone knows, Anal Is King.

"They have assessed an offense level for every imaginable type of offense," Sirkin explained. "Obscenity in and of itself is considered a level 10. That's not real bad. But if it's for pecuniary gain, you start to then bracket how much money did they make, gross? So what happens is, if they can't prove the amount of money that he made, if it's not very much money, it should only go up five levels, which would make it a level 15 before you do some other additions. The government's position is, 'Oh, no; everything that they produced was for sale; therefore, their gross amount of sales were $1.4 million, so as a result, we want to add 16 levels,' so it would go from a 10 to a 26, and that translates to a lot of jail time."

"Then you've got another problem," he continued, "because you've got the Website, so you add two levels because you had the use of a computer. Can't fight that. That's 28 now. Now you add four levels for sadomasochism, because it's the portrayal of sadomasochism, so now you have Max up to a level 32. Now, a level 32, you're talking 10 to 12 years. Per count, the maximum he could get is five years, but you've got more than one count. She could run them consecutively."

As we know, that didn't happen; the judge rejected the government's money calculation - but she wasn't about to do a Barefoot Sanders and just forfeit to the government the wholesale value of two tapes, as Sanders did in the CPLC/Investment Enterprises case. Between Little and his company, the total forfeiture, aside from his websites, is $87,500 - but it could have been a lot more, if it weren't for the fairly sharp lawyering of the defense team: Sirkin, partner Jennifer Kinsley, Jeffrey Douglas, Jamie Benjamin and Dan Aaronson.

"Now this is an issue that has a tremendous amount of significance to the industry," Sirkin continued, getting to the nub of his argument, "because it's going to be precedent-setting, and the problem is, we're going to get stuck with the appeal; my office is going to end up doing it, and I'm going to tell you something: I'm getting sick and tired of this adult industry being controlled by a few people who seem to make policy for all the rest. My office doesn't have retainer clients. We don't practice that way, so I don't have allegiances to specific people; I have an allegiance to an industry, and it's blowing itself apart, because I'm getting boiled over with it. There's no more money coming in on [Extreme Associates' Rob] Black, and I went to the Third Circuit on that goddamn thing, and we're going to trial on it in the spring. The only thing, Free Speech helped print the brief [for the petition] to the Supreme Court, but for the most part, everybody just sits back and says, 'Well, it's not me.' These are the cases that stop other cases, and they [industry leaders] don't fucking get it."

"The industry right now is really hurting," Sirkin declared. "The government could put the entire adult industry to rest if they brought a series of indictments against them all, because business is so shitty, and if they start going after individual bookstores and whatever - because as you know, business is on the brink; they're about to totally bust it. We don't have Reuben Sturman anymore. Back in the old days, 25 years ago, he came to bat and helped with everybody. Now, there's nobody like him."

So for Sirkin, the question is, how long can he afford to keep doing what he does so well?

"Look," he said, "we're not public defenders. More than anybody, I've been really grooming, have totally groomed some young people, and they're still learning what to do, but I'm grooming somebody; nobody else is doing it. None of these younger guys have done courtroom shit except for Jamie Benjamin and Danny Aaronson and Jeffrey Douglas. Those are the kids that have tried cases, but you know what's gonna happen? They're going to say, 'I don't want this industry anymore. I've got a good criminal practice,' and they're not gonna do it, and the fucking industry just sits there on its high horse out there in California and they think, 'Well, you know, it ain't me; they ain't coming for me.' And remember that quote from Germany: 'First they came for ...' really is applicable now."

Sirkin was referring to the now-famous 1946 quote from Pastor Martin Niemöller:

"In Germany, they came first for the Communists, and I didn't speak up because I wasn't a Communist. And then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. And then they came for the Jews, and I didn't speak up because I wasn't a Jew. And then ... they came for me ... and by that time there was no one left to speak up."

"The industry could be dissolved, and it's happening, and it galls me because I can see it and I can feel it and I know it," Sirkin said, "but I'm telling you, they don't get it out there. It's like I said four years ago when I got that award from Free Speech and I said Lawrence [v. Texas] is the new place. I said that two months after the decision was printed, and I said that's what we've got to use with the bookstores and the licensing and the zoning. Alameda Books is at least at the level it is now; that was a bright light, and every once in a while we come up with a sparkle but we're getting crucified. These courts don't even want to hear arguments. You saw what happened to Luke [Lirot] in the Eleventh Circuit, and Luke is a good lawyer, he's really a good lawyer."

Sirkin was referring to the Eleventh Circuit's recent affirmation of the 5634 East Hillsborough Avenue v. Hillsborough County, Fla. case, where the panel refused to overturn the district court's finding that the appellants had failed to present sufficient challenges to the county's oppressive anti-adult ordinances to overcome the Alameda Books criteria that such ordinances not be based on shoddy data or reasoning, and that they actually have the purpose and effect of suppressing secondary effects. The case undid much of what Lirot had won four years ago in Peek-A-Boo Lounge of Bradenton v. Manatee County, Fla.

Sirkin clearly sees where the battle between the adult industry and the government is headed - and it tends to set him off on a rant:

"These adult companies don't realize that they're not going to be left just to go out of business; the government's going to go after them," he predicted. "They're going to want their pound of flesh, and these people are going to go to prison, and what's really scary is after what happened with CPLC with [Great Western Litho's Michael] Warner and all those people, they were lucky and they got reclassified and didn't go into medium security [prison], but now, pandering is a Tier 1 offense, and you don't get Allenwood [Federal Prison Camp] for that. Clyde DeWitt can stand up and tell me they'll never adopt it in California - bullshit, because they'll get 10% of their law enforcement matching money cut off if they don't do it, so they're all gonna do it, and they're all gonna find themselves in a really bad situation."

Sirkin was referring to the requirement in the Adam Walsh Act, that states reclassify "sale of obscene material" to be a "Tier 1" sexual offense, forcing those convicted of the crime to spend a minimum of 10 years on the government's Sex Offender Registry, as chronicled here .

"And we've been pounding it; we haven't just been talking about it for no reason at all," Sirkin continued. "We've got to come up with something new. We've got to push and push on that substantive due process situation and be honest and say to everybody - the censors, the courts, everybody - 'Look, people jack off in this world, people like to look at naked women, people like to be humped and whatever.' We've finally got to have the guts to stand up in front of somebody and say that and stop talking about sexually dysfunctional human beings - it's everybody, and they can relate to it. That's what happened down in the Fifth Circuit [in the Reliable Consultants case] when we got up and said, you know, 'Look, why do you think people use toys and condoms? They use them because sex is pleasurable, so the stuff about procreation is garbage.' Let's tell it like it is!"

"I'm venting," he acknowledged, "and I've vented to Jeffrey, and I know it and I know what goes on with the adult people, but they better wake up, because I've been out there. My office and I have tried more obscenity cases since 2000 than anybody else in the country. The only ones that have really tried any - Paul [Cambria] tried the one in Staunton with me, and then Jamie's tried a couple down in Florida, and we know what these jurors are coming back with, and it's not like the old days, where federal courts allowed you six weeks to pick a jury; it doesn't happen that way anymore. They ask the questions! They seat a jury in a couple of hours, and the one thing I've learned between [the Five Star case in] Phoenix and the case in Tampa is how much influence the judge has in the case; how much control and how they can direct this. Like Art Schwartz used to say, if you want to fix a football game, don't bribe the players, bribe the ref, because one play can change the momentum, and one ruling from a court - like the judge did to us down in Tampa, changing from one day, 'Government, you're going to have to show the movies as a whole,' to changing her mind the next day, and how you approach things. On Extreme, we've got the best judge that anybody could ever have. He listens to us; he keeps repeating on certain things that, 'I need help and guidance' because there's no judge in the Pittsburgh area that has ever tried an obscenity case, so they don't know what they're doing and he's not very eager to do it. He has listened to the issues and he had some balls dismissing the charges back in '05 and all that, but the adult industry is willing to throw it away. They really are. I mean, how far can we continue to go? We're committed and that kind of stuff, but at some point, we're going to have to say, 'Hey, look, we're going to have to look at alternatives to resolving it.' Once they get resolved, those issues that we won in motions could die by the wayside, so they may hate Rob Black and they may hate Paul Little, they may hate him with a passion, but there are issues that they must realize are much more important than whether they like these guys or not."

What Sirkin means is that the scions of the industry can spend a moderate amount of money now, helping win cases that can be won, and mitigating the effects of cases that can't be won - Little was looking at the possibility of 50 years in prison and $5 million in fines, but got just four years 10 months and $87,500 in fines thanks to effective argument - or it can spend a lot more money in the future after the government, emboldened by wins (or plea deals) in the Max Hardcore and Extreme cases, presses its luck with indictments of more mainstream companies. It's not too difficult to draw an upwardly sloping line of indictments from Extreme to JM (Five Star) to Max Hardcore to Evil Angel ... to where? We won't name names here, since we're aware that the government reads this website, but anyone familiar with adult material can figure out at least two or three places the feds are likely to strike next.

The point is, it takes money. Everyone knows that adult producers and retailers are hurting now - a recent article in the Financial Timesquoted Paul Fishbein as saying that "the industry is in the worst shape he has seen for 25 years" - but we have no assurance, even with the likelihood of a new Democratic president in January, that the Justice Department will abandon its current mandate to stamp out the adult industry.

Little has recently been calling around the industry to try to raise funds for his appeal - you remember: The one he's likely to win - and while I don't know what his results have been, I was saddened that Free Speech Coalition, which represents the interests of the adult community (and on whose board of directors I sit), could not see fit to help defray any portion of Little's expenses. The rationale? Money should be reserved for taking on cases of "national significance."

The implication, of course, is that one producer's win or loss in a federal obscenity trial doesn't have national significance, and when this guideline was created back in the '90s, there might have been some validity to it - but with the new century's attorneys general all paying lip-service to federal obscenity prosecution, and the last two actively pursuing it, it seems clear that at least some of the issues raised in these proceedings could easily lay the groundwork for future such prosecutions - or nip them in the bud, if appeals decisions go as we have every reason to expect that they will in Little's case.

Indeed, no less a personage than George Washington University law Prof. Jonathan Turley, a frequent commentator on MSNBC's "Countdown with Keith Olbermann," kept abreast of the Little trial as it progressed, and found it of significance , if for no other reason than that, "The Court refused to create a bright-line of the right of consenting adults to have such material so long as it does not involve abuse of individuals. Instead, it went through a ludicrous period of actually watching porn and following the most fluid and biased rules" - "fluid" being exactly what criminal laws should not be!

Turley also took the Justice Department to task for "forum shopping," and noted, most importantly, "With the advent of the Internet, there is no practical way for a producer of such material to know every possible community standards - a rule that would force compliance with the most conservative standards. That seems to be what the Bush Administration wants by engineering a test case in Tampa. Now a jury is sitting in a room in Tampa watching hours of pornography to decide whether it insults their personal standards. They will then decide whether their neighbors can buy such material and whether Little can be sent to jail for supplying it. It is a libertarian and civil liberties nightmare."

The Internet aspect of Little's case also caught the attention of PC World magazine, which raised similar questions of how to determine the "community standards" of the online community.

The point is that, like him or not, the outcome of Paul Little's ongoing legal battle, being the first federal trial of a recognized adult industry producer, will have effects on every similar prosecution the Justice Department brings, and the issues decided here on appeal will impact what material is charged, how it is charged and in what forums it is charged ... and make no mistake: As religious conservatives gain more and more influence over the Justice Department, their oft-stated view that there is no essential difference between what "Max Hardcore" produces and what, say, Vivid Video or Wicked Pictures produces will come to dominate.

In other words, no one is safe from these predators, so the time to fight them is now - and the means to do so are in your pocket and/or purse.

Note: The above opinions are strictly those of the author, and do not necessarily reflect the opinions of AVN Media Networks or its owners or management